Mirror of Justice

Tomorrow in Chicago: "Natural Law in Court"

As Rick noted, I'll be part of an event in Chicago tomorrow sponsored by the Lumen Christi Institute with Adrian Vermeule and Jeff Pojanowski on Richard Helmholz's book Natural Law in Court: A History of Legal Theory in Practice. Details here. I noted a couple years ago a review by John Goldberg of the book when it was published, and the event should be an interesting exploration of the themes in the book as well as a celebration of the remarkable career of Dick Helmholz.

How Should a Law School's Religious Affiliation Matter in a Difficult Market?

I've posted a new paper that might interest MoJ readers, How Should a Law School's Religious Affiliation Matter in a Difficult Market?  Put simply, I aim to help deans and faculty "explain why prospective students who are told repeatedly that law school is a risky proposition should care that our law schools have religious affiliations."

Here's the abstract:

For religiously affiliated law schools, a broad and deep understanding of professional formation should lie at the heart of our reason for being and should grow out of our own religious traditions, allowing us to educate the whole person. Articulating and cultivating this deeper understanding of professional formation is essential for deans of religiously affiliated law schools today as we seek to demonstrate the connection between our religious identity and the value proposition our schools offer to our current and prospective students.

Feedback is welcome.

Movsesian Interviews Dreher

Rod Dreher's recent book, The Benedict Option, is an interesting meditation on the future for Christians in what he describes as a post-Christian culture and society. In this extended, candid, and far-ranging interview, my colleague, Mark Movsesian, discusses the book's claims with Rod and much else that may interest MOJ readers. A bit:

Movsesian: I wonder if we could talk about tradition, which runs like a red thread through your book. You argue that it’s necessary for Christians to return to tradition in order to resist “liquid modernity,” which denies the value of all attachments and identities except those individuals freely choose for themselves. In liquid modernity, the only thing that has meaning is momentary individual choice. This is quite destabilizing for individuals and for society; that’s where tradition can be helpful.

As co-director of the Tradition Project, I have sympathy for your view! But I think there’s a paradox about tradition in a pluralist society like ours. In such a society, tradition is itself a matter of individual choice; there’s no avoiding it. Tradition is just one available option among many for an individual to choose; in the end, each of us is free to choose tradition or to reject it; to choose it and then reject it; or to choose some aspects of it and not others. This is true even of people brought up in a tradition—like the kids attending classical Christian schools today. What do you make of this paradox?

Dreher: There’s no escaping it. I am quite aware of the near-absurdity of my own personal case: a 50-year-old man raised a nominal Methodist, a convert to Catholicism in my mid-20s, converting to Orthodox Christianity at 39, and having moved around the country a great deal for my career, writing a book in praise of tradition. Yet … what else is there? Charles Taylor says that we all live in a secular age, which he defines as the awareness of the possibility that we don’t have to live the way that we do. We cannot escape choice.

This is why our St. Benedict, if we are to have one, must be new and very different, as MacIntyre said. The first Benedict emerged in a West that was still new to Christianity. Now we have been through the Christian era, and can’t un-see what we have seen. And the consciousness of an ordinary person living in the 21^st century can hardly be compared to the way a 6^th century layman saw the world conceptually and imaginatively. This point hardly needs elaboration, but it conditions any approach to tradition we make today.

To bring this discussion down to earth, I think a lot these days about my late father and sister, who were in most respects traditionalists without knowing what they were doing. That is, they assumed that the rural way of life they had in south Louisiana was going to continue forever. They were quite intelligent, but they strongly rejected as alien anything that challenged their way of seeing the world. That meant rejecting me, and the things that I loved and stood for, though I didn’t realize how thorough this rejection was until I returned to south Louisiana after my sister’s 2011 death. My dad died in 2015. The family has not held together, for various reasons – and this was something I never expected. I deeply admired the unselfconscious traditionalism that my dad and sister represented. They didn’t theorize this stuff; they lived it. But I can see in retrospect that they believed that force of their iron wills was sufficient to ward off all threats to the things they valued most, especially family and place. It was a tragic mistake. Their rigidity, by which I mean their unwillingness to adapt and to change certain things that needed to be changed for the sake of holding on to the things that really mattered the most – that was the fundamental flaw that doomed the entire thing. They thought that stoically preserving their fortress-like outer walls would keep the interior safe. They were wrong.

It’s heartbreaking and tragic in the fullest sense of the word, and a very Southern tragedy too.  But I try to learn from what happened. I suspect I’ll spend the rest of my life trying to learn from what happened. Right now, I think the most basic lesson is the need for discernment in our approach to tradition. There is no substitute for it. We have to know what we have to change so we can conserve what is essential. This is hard.

On the more optimistic side, though, I believe that we are starting to see more and more people realizing that the future is not determined. Yes, I think we have to be aware of all that is against us in post-Christian modernity, but we also have to be aware that God can surprise us – and we can surprise ourselves. I mean, look, Napoleon closed the monastery in Norcia, St. Benedict’s hometown,  after at least eight centuries of constant presence there. For nearly 200 years, there were no monks. And then, at the turn of the millennium, a handful of American Benedictines who wanted to live in the old Benedictine way re-opened it. Now they have a thriving community of 16 monks. The average age is 33. Who could have expected that?

In The Benedict Option, I quote one of those monks, Father Martin Bernhard, who left the Texas Hill Country to follow his calling to Norcia. When I visited him there in early 2016, I told him that they are a sign of contradiction to the modern world. He smiled, and said that anybody could do something out of the ordinary if they are willing “to pick up what we have lost and to make it real again.”

The monk told me, “People say, ‘Oh, you’re just trying to turn back the clock.’ That makes no sense. If you’re doing something right now, it means you’re doing it right now. It’s new, and it’s alive! And that’s a very powerful thing.”

God knows it will not be easy to revive traditional Christian life and practices. But again: what else is there?

Tradition and Traditionalisms Compared: A Joint Program of The Tradition Project and the Post-Secular Conflicts Project

I'm pleased to announce this conference, to be held in Trento, Italy on June 12-13, which my colleague, Mark Movsesian, and I are putting on jointly with Professor Kristina Stoeckl of the University of Innsbruck, Professor Pasquale Annicchino of the European University Institute, and Professor Marco Ventura, the Head of the Religious Studies Program at the Fondazione Bruno Kessler.

The conference will compare tradition and traditionalism in the Anglo-American and Russian historical experience (for those who do not know Professor Stoeckl's very fine book on Russian Orthodoxy and human rights, allow me to recommend it), and we're happy to have MOJ denizens Moreland and Vermeule joining us. There is something fitting about American and Russian scholars descending on the Dolomites and the locus of the Concilium Tridentinum to discuss and reflect on the respective traditions that they study.

A Retreat on Prosecutorial Discretion and a Return to Retrograde Imprisonment Practices

With incomplete but meaningful progress on wrongful convictions and sentencing reform, a partial return to the traditional expectations of prosecutorial discretion in the interests of justice was a distinctive mark of the Obama Department of Justice. Then-Attorney General Holder began to address the problem of over-incarceration for non-violent offenses by encouraging federal prosecutors to press charges that were tailored to the culpability and circumstances of the defendant, reserving lengthy prison terms for violent criminal and drug kingpins. A bipartisan consensus has been emerging that decades-long prison sentences for low-level drug offenders were contrary to justice, undermined community stability, foreshadowed lifelong problems with the criminal justice system, and imposed massive costs on taxpayers.

Alas, the increasingly retrograde Department of Justice under Attorney General Sessions has swept all of this away and retreated to an unthinking and morally unjust policy of charging defendants with the most serious crimes carrying the highest sentences that can pass the low threshold of probable cause. As the Washington Post reports today, Sessions contends that this allows more flexibility to prosecutors  who would be “un-handcuffed and not micromanaged from Washington.” In fact, the Trump political surrogate-cum-Attorney General -- has ordered federal prosecutors to “charge and pursue the most serious, readily provable offense.” So now, contrary to a morally thoughtful system of justice and every study of what works in criminal justice, we retreat to a failed policy that has embarrassed our country with the highest rate of incarceration anywhere in the world and which will destroy more lives and families, impairing rehabilitation and restoration to communities. And just like the doltish “wall,“ we're all going to end up paying for this in ways monetary and otherwise.

Sessions argues that “[w]e are returning to the enforcement of the laws as passed by Congress, plain and simple.” But as I wrote on the topic four years ago (full post here):

No legal, moral, or professional obligation requires a prosecutor -- wielding the awesome power of government to subject a person to captivity -- to charge someone whenever a plausible case can be made that he or she has committed a crime, much less to seek the highest charge (with the highest attendant sentence) that the facts could support.  Indeed, there was a time when a prosecutor, as a matter of wise discretion, would choose not to file a charge at all, when the circumstances were extenuating or a criminal solution was not in the best interests of all of those involved in an episode.

 

Misunderstanding religious liberty and the freedom of the Church

Over at Commonweal, Prof. Massimo Faggioli (Villanova) has a piece  ("Continental Drift") that is, among other things, critical of Catholic bishops in the United States for their religious-liberty stance and activities.  Prof. Faggioli writes:

[T]here’s a gap in time between American Catholicism and the pontificate of Francis—not just the six- or nine-hour differences in time zones but what seems like a six- or nine-century difference in historical time. Institutional American Catholicism is longing for a relationship to a political power that is more medieval than modern or postmodern, hoping for protection from the persecution it feels in having lost cultural hegemony. This can be seen in the medieval understanding of religious liberty that has obtained since the beginning of the legal fight against certain provisions of the Affordable Care Act eight years ago. It resembles libertas Ecclesiae, the “freedom of the Church” to rule on the faithful as subjects, more than it does the concept of religious liberty laid out in Dignitatis Humanae, which is based on the freedom of conscience of the individual believer. It is an example of the “interrupted reception” of Vatican II in the U.S. Church. Vatican II tried to deal with the end of Tridentinism; its rejection brings us back not to Trent but even earlier, to a medieval Christendom as the past to which Roman Catholics ought to refer as the golden age.

This quote reflects both a mistaken view of the Church's "medieval" "relationship to . . . political power" and a mischaracterization -- indeed, a caricature ("to rule on the faithful as subjects") -- of what the Church in America has been seeking in the current American context.  The Council did not, contra Prof. Faggioli's suggestion, set the "freedom of conscience of the individual believer" against the freedom of the Church.  There's this (emphasis added):

This Vatican Council declares that the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.

The council further declares that the right to religious freedom has its foundation in the very dignity of the human person as this dignity is known through the revealed word of God and by reason itself.  This right of the human person to religious freedom is to be recognized in the constitutional law whereby society is governed and thus it is to become a civil right.

It is in accordance with their dignity as persons-that is, beings endowed with reason and free will and therefore privileged to bear personal responsibility-that all men should be at once impelled by nature and also bound by a moral obligation to seek the truth, especially religious truth. They are also bound to adhere to the truth, once it is known, and to order their whole lives in accord with the demands of truth. However, men cannot discharge these obligations in a manner in keeping with their own nature unless they enjoy immunity from external coercion as well as psychological freedom. Therefore the right to religious freedom has its foundation not in the subjective disposition of the person, but in his very nature. In consequence, the right to this immunity continues to exist even in those who do not live up to their obligation of seeking the truth and adhering to it and the exercise of this right is not to be impeded, provided that just public order be observed.

And, there's this:

The freedom or immunity from coercion in matters religious which is the endowment of persons as individuals is also to be recognized as their right when they act in community. Religious communities are a requirement of the social nature both of man and of religion itself.

Provided the just demands of public order are observed, religious communities rightfully claim freedom in order that they may govern themselves according to their own norms, honor the Supreme Being in public worship, assist their members in the practice of the religious life, strengthen them by instruction, and promote institutions in which they may join together for the purpose of ordering their own lives in accordance with their religious principles.

Religious communities also have the right not to be hindered, either by legal measures or by administrative action on the part of government, in the selection, training, appointment, and transferral of their own ministers, in communicating with religious authorities and communities abroad, in erecting buildings for religious purposes, and in the acquisition and use of suitable funds or properties.

Religious communities also have the right not to be hindered in their public teaching and witness to their faith, whether by the spoken or by the written word. However, in spreading religious faith and in introducing religious practices everyone ought at all times to refrain from any manner of action which might seem to carry a hint of coercion or of a kind of persuasion that would be dishonorable or unworthy, especially when dealing with poor or uneducated people. Such a manner of action would have to be considered an abuse of one's right and a violation of the right of others.

In addition, it comes within the meaning of religious freedom that religious communities should not be prohibited from freely undertaking to show the special value of their doctrine in what concerns the organization of society and the inspiration of the whole of human activity. Finally, the social nature of man and the very nature of religion afford the foundation of the right of men freely to hold meetings and to establish educational, cultural, charitable and social organizations, under the impulse of their own religious sense.

In recent years, the rights of religious communities set out above have, in various ways, become more vulnerable and, in some cases (as in the previous Administration's position in the Hosanna-Tabor case) been attacked.  The Catholic bishops in America have been correct (and entirely in keeping with the religious-freedom views of Pope Francis and his predecessors) in defending these rights and nothing about this defense sets them against the religious freedom of individual believers.

  

Prof. Gerard Bradley on religious freedom and the common good

My colleague, Prof. Gerard Bradley, has a thoughtful piece up at Public Discourse, called "Religious Liberty and the Common Good."  Here's a bit:

A key pillar of the common good as it pertains to religious liberty, then, is a strict duty to respect by each person of every other person’s freedom in religious matters. Another is the softer—affirmative, circumstantially qualified—obligation to do what one can to protect others from coercion, pressure, manipulation, and unworthy persuasion....

Described in this way, freedom of religion might sound like a strikingly negativeliberty. And indeed, freedom from force and manipulation is essential to religious liberty. But it is not the whole of it. Not nearly.

Unless it is suffused with the right cultural stuff, a scheme overridingly committed to each person’s free quest for religious truth is likely to derail into an enabler of individual self-invention and individuality for its own sake. Where it happens (and I think it is happening in America right now) this devolution into subjectivity is acidic. It corrodes the undercarriage of genuine religious liberty, especially the essential notion that religion is about objective truth. Plainly put, a culture that has lost its belief that religion is about the truth of reality has decapitated religious liberty....

A short primer on the Blaine Amendments

The Federalist Society has put up a short animated primer on the Blaine Amendments, featuring a law professor who, clearly, has a face for radio.   For more on the Trinity Lutheran case, go here.

Panel discussion in Chicago: "Natural Law in Court"

If you are in or near Chicago, don't miss this event on May 18:  Michael Moreland, Adrian Vermeule, and Jeff Pojanowski -- what a line-up! -- will be discussing Richard Helmholz's new book, Natural Law in Court:  A History of Legal Theory in Practice.  More info:

Join us for a reception and panel discussion of the recent book by R. H. Helmholz, Natural Law in Court: A History of Legal Theory in Practice (Harvard University Press, 2015). Copies of the book will be available for purchase.

Until very recently, lawyers in the Western tradition studied natural law as a part of their training, and the task of the judicial system was to put its tenets into concrete form, building an edifice of positive law on natural law’s foundations. Although much has been written about natural law in theory, surprisingly little has been said about how it has shaped legal practice. Natural Law in Court asks how lawyers and judges made and interpreted natural law arguments in England, Europe, and the United States, from the beginning of the sixteenth century to the American Civil War.

SCHEDULE:

5:15PM   Registration and Reception

6:15PM   Program

7:30PM   Close

Fordham Event on "Religious Liberty in a Pluralistic World"

On May 16, I'll be one of the panelists at an event on Fordham's Manhattan (Lincoln Center) campus, entitled "And Justice for All? Religious Liberty in a Pluralistic World." My terrific co-panelists are Sr. Carol Keehan, executive director of the Catholic Health Association; Asma Uddin, of the Center on Islam and Religious Freedom; Ani Sarkissian, professor at Michigan State specializing in global issues of religion, politics, and religious freedom; and moderator Vince Rougeau of Boston College. The sponsor is Fordham's Center for Religion and Culture. If you're in NYC, come to Lincoln Center from 6-8 p.m. for a symphony of contrasting and complementing themes!